B-136834, DECEMBER 18, 1959, 39 COMP. GEN. 448

B-136834, DECEMBER 18, 1959, 39 COMP. GEN. 448

TRANSPORTATION - CLAIMS - STATUTE OF LIMITATIONS - DATE OF ACCRUAL CLAIMS AGAINST THE UNITED STATES FOR TRANSPORTATION CHARGES ACCRUE UPON THE COMPLETION OF THE TRANSPORTATION SERVICE, THAT IS, THE DATE OF DELIVERY OF THE SHIPMENT TO THE CONSIGNEE, AND THE 10-YEAR STATUTE OF LIMITATIONS ESTABLISHED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, FOR CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE BEGINS TO RUN FROM THE TIME THE SERVICE IS COMPLETED; HOWEVER, WHEN, IN A POST AUDIT, DETERMINATION THAT AN OVERPAYMENT WAS MADE, AND THE OVERPAYMENT IS COLLECTED FROM THE CARRIER UNDER 49 U.S.C. 66, A NEW RECOVERY RIGHT, UNDER THE 10-YEAR STATUTE, THEN ACCRUES IF THE COLLECTION PROVES ERRONEOUS, AND SUCH RIGHT AS TO TRANSPORTATION SERVICES PERFORMED PRIOR TO AUGUST 26, 1958--- THE DATE OF ENACTMENT OF PUBLIC LAW 85-762, 49 U.S.C. 16 (3) WHICH REDUCED THE PERIOD FOR RECOVERY--- MAY BE ASSERTED BY CLAIMS FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS FROM THE DATE OF THE ERRONEOUS COLLECTION, BUT THIS RIGHT TO ASSERT A CLAIM EXTENDS ONLY TO THE AMOUNT ACTUALLY COLLECTED. UNDER THE ACT OF AUGUST 26, 1958, PUBLIC LAW 85-762, 49 U.S.C. 16 (3), WHICH REDUCES THE PERIOD FOR RECOVERY OF TRANSPORTATION CHARGES TO THREE YEARS, CLAIMS WITH RESPECT TO TRANSPORTATION SERVICES PERFORMED AFTER AUGUST 26, 1958, MUST BE FILED WITH THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS FROM (1) PAYMENT OF CHARGES FOR THE TRANSPORTATION INVOLVED, OR (2) SUBSEQUENT REFUND FOR OVERPAYMENT OF SUCH CHARGES, OR (3) DEDUCTION MADE UNDER 49 U.S.C. 66, WHICHEVER IS LATER. T SET OFF ON JUNE 23, 1952.

TO THE ILLINOIS CENTRAL RAILROAD, DECEMBER 18, 1959:

WE HAVE FOR CONSIDERATION YOUR REQUESTS FOR REVIEW OF THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION ON YOUR CLAIMS BY NUMEROUS SUPPLEMENTAL BILLS FOR ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY MOVING UNDER GOVERNMENT BILLS OF LADING DURING THE YEARS 1942, 1943, 1944, AND 1945. THE RECORD SHOWS THAT IN EACH INSTANCE YOUR ORIGINAL BILLS AND ALL SUBSEQUENT ADJUSTMENTS WERE BASED UPON THE USE OF EXPORT RATES UNTIL THE SUPPLEMENTAL BILLS IN QUESTION WERE RECEIVED IN THE GENERAL ACCOUNTING OFFICE BEGINNING IN FEBRUARY 1956. THESE SUPPLEMENTAL BILLS, WHICH ARE PREDICATED ON THE USE OF HIGHER DOMESTIC RATES ALLEGED TO BE APPLICABLE TO THE SHIPMENTS INVOLVED, CITE UNITED STATES V. CHESAPEAKE AND OHIO RAILWAY CO., 224 F.2D 443, AS AUTHORITY FOR THEIR ALLOWANCE. THE SUPPLEMENTAL BILLS WERE RETURNED TO YOU BY OUR TRANSPORTATION DIVISION ON THE BASIS THAT YOUR CLAIMS WERE BARRED BY THE 10-YEAR STATUTE OF LIMITATIONS SET FORTH IN THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A.

IT IS YOUR CONTENTION IN REQUESTING REVIEW OF THE DIVISION'S ACTIONS THAT ANY SUBSEQUENT ADJUSTMENT OR SETTLEMENT OF YOUR ORIGINAL BILL BY REASON OF DEDUCTION OR REFUND OF AN OVERPAYMENT FOUND IN OUR AUDIT PURSUANT TO THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, OR BECAUSE OF THE ALLOWANCE OR DISALLOWANCE OF A SUPPLEMENTAL BILL FILED PURSUANT TO THE BUDGET AND ACCOUNTING ACT, 1921, 31 U.S.C. 71, ESTABLISHES A NEW DATE FROM WHICH THE 10-YEAR STATUTE OF LIMITATIONS BEGINS TO RUN. IN SUPPORT OF YOUR POSITION YOU RELY ON AN EXCERPT FROM A MONOGRAPH RELEASED BY OUR TRANSPORTATION DIVISION WHICH PROVIDES IN SUBSTANCE THAT THE REFUND OF AN AMOUNT DETERMINED AS OVERPAID BY THE TRANSPORTATION DIVISION OF THE GENERAL ACCOUNTING OFFICE DOES NOT ESTOP A CARRIER FROM FILING CLAIM (SUPPLEMENTAL BILL) FOR ALL OR A PART OF THE AMOUNT REFUNDED IF SUBSEQUENT CONSIDERATION OF THE MATTER OR THE DISCOVERY OF NEW AND MATERIAL EVIDENCE INDICATES THE PRESENCE OF ERROR.

THE ACT OF OCTOBER 9, 1940, PROVIDES IN PART THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. A CLAIM FOR TRANSPORTATION CHARGES AGAINST THE UNITED STATES ACCRUES UPON THE COMPLETION OF THE TRANSPORTATION SERVICE, THAT IS, THE DATE OF DELIVERY OF THE SHIPMENT TO THE CONSIGNEE, AND THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THAT TIME. SEE ARKANSAS OAK FLOORING CO. V. LOUISIANA AND ARKANSAS RAILWAY CO., 166 F.2D 98; UNITED STATES V. WILDER, 13 WALL. 254; SOUTHERN PACIFIC CO. V. UNITED STATES, 67 C.1CLS. 414, CERT. DENIED 280 U.S. 567; ATLANTIC COAST LINE RAILROAD CO. V. UNITED STATES, 66 C.1CLS. 577; AND HUGHES TRANSPORTATION, INC. V. UNITED STATES, 109 F.1SUPP. 373. HOWEVER, WHERE UPON POST AUDIT A DETERMINATION IS REACHED THAT AN OVERPAYMENT UNDER 49 U.S.C. 66, A NEW RIGHT THEN ACCRUES, IF SUCH COLLECTION PROVES ERRONEOUS, TO RECOVER SUCH ERRONEOUS COLLECTION. SUCH RIGHT MAY BE ASSERTED AS TO TRANSPORTATION PERFORMED OR ON PRIOR TO AUGUST 26, 1958, BY CLAIMS FILED IN OUR OFFICE WITHIN 10 YEARS OF THE DATE OF THE ERRONEOUS DEDUCTION. SEE, IN THIS CONNECTION, WILLIAMS V. UNITED STATES, 63 C.1CLS. 668, CERTIORARI DENIED 275 U.S. 539; EASTERN FREIGHT WAYS V. UNITED STATES, 155 FED. SUPP. 22, AND, THE ACT OF AUGUST 26, 1958, 72 STAT. 859, 49 U.S.C. 16 (3), REDUCING SUCH PERIOD TO THREE YEARS AS TO TRANSPORTATION PERFORMED AFTER AUGUST 26, 1958. SUCH RIGHT APPLIES ONLY TO THE EXTENT OF THE AMOUNT SO COLLECTED AND DOES NOT, OF COURSE, GIVE RISE TO A NEW RIGHT EXCEPT TO THE QUANTUM OF THE COLLECTION ACTUALLY MADE. THE SECTION OF THE MONOGRAPH REFERRED TO BY YOU DOES NOT DISCUSS THE APPLICATION OF THE BARRING STATUTE TO CLAIMS FOR REFUND OF AMOUNTS ASSERTED TO HAVE BEEN ERRONEOUSLY COLLECTED IN TRANSPORTATION CASES. WHEN CONSIDERED IN THE LIGHT OF SUCH STATUTES, THE SECTION OF THE MONOGRAPH CLEARLY DOES NOT MEAN THAT THERE IS A RIGHT, FOREVER THEREAFTER, IN WHICH ASSERTEDLY ERRONEOUS COLLECTIONS MAY BE RECLAIMED BUT SUCH RIGHT IS SUBJECT TO THE APPLICABLE PERIODS OF THE BARRING STATUTES. ALSO, THERE IS NOTHING THEREIN WHICH WOULD INDICATE THAT THE ALLOWANCE OR DISALLOWANCE OF A TIMELY FILED SUPPLEMENTAL BILL ESTABLISHES A NEW DATE FROM WHICH THE STATUTORY PERIOD AGAIN WILL COMMENCE TO RUN. SEE, IN THIS CONNECTION, 36 COMP. GEN. 360, ID. 362. WHILE REVIEW OF A DISALLOWANCE MAY BE OBTAINED WITHIN A REASONABLE PERIOD AFTER ITS DATE, A REQUEST THEREFOR NOT MADE WITHIN SUCH A PERIOD OR A SUPPLEMENTAL BILL CLAIMING AN AMOUNT DUE ON A DIFFERENT BASIS CONSTITUTES A NEW CLAIM AND IF NOT FILED WITHIN THE STATUTORY PERIOD IS BARRED. SEE 32 COMP. GEN. 107.

THE RECORD SHOWS THAT YOUR SUPPLEMENTAL CLAIMS IN QUESTION FALL INTO TWO CATEGORIES EXEMPLIFIED BY THE FOLLOWING SUPPLEMENTAL BILLS WHICH WILL BE DISCUSSED IN DETAIL AS REPRESENTATIVE OF THE CLAIMS INVOLVED:

1. SUPPLEMENTAL BILL NO. N-170814-9-B, TK-216239.

THIS BILL INVOLVES SHIPMENTS MOVING FROM RACINE, WISCONSIN, TO GULFPORT, MISSISSIPPI, IN AUGUST AND SEPTEMBER 1942, UNDER GOVERNMENT BILLS OF LADING NOS. N-289708, N-289715, N-289716, N-289719, N-289720, AND N- 289722. THE BILLS OF LADING INDICATE THAT THE SHIPMENTS WERE FOR EXPORT AND THE CHARGES ON THESE SHIPMENTS WERE CLAIMED AND PAID IN JANUARY 1943 ON THE BASIS OF THE APPLICABLE EXPORT RATE. ON MARCH 6, 1949, YOU SUBMITTED SUPPLEMENTAL BILL NO. N-170814-9-A FOR $1,758.48 ADDITIONAL CHARGES ALLEGED TO BE DUE ON THE BASIS THAT THE CONSIST OF THE SHIPMENT WAS OTHER THAN THAT SET OUT ON THE BILLS OF LADING. NO EVIDENCE WAS SUBMITTED OR DEVELOPED TO SUPPORT SUCH ALLEGATION AND THAT CLAIM WAS DISSALLOWED BY OUR SETTLEMENT DATED APRIL 17, 1950. THEREAFTER, THERE WAS RECEIVED HERE ON JULY 5, 1957, YOUR SUPPLEMENTAL "B" BILL FOR $1,018.20 ADDITIONAL CHARGES COMPUTED ON THE BASIS OF DOMESTIC RATES. IN SUPPORT OF THIS CLAIM YOU INCLUDED A COPY OF A LETTER DATED MAY 23, 1957, FROM THE U.S. NAVY REGIONAL ACCOUNTS OFFICE TO THE EFFECT THAT THE NAVAL RECORDS MANAGEMENT CENTER, CLEAR FIELD, UTAH, HAD ADVISED THAT THE RECORDS THEN AVAILABLE DID NOT CONTAIN INFORMATION CONCERNING THE EXPORTATION OF THE MATERIAL SHIPPED ON BILL OF LADING N-289719. ON MARCH 25, 1959, YOU WERE ADVISED THAT THIS CLAIM WAS BARRED BY THE ACT OF OCTOBER 9, 1940. LETTER DATED APRIL 16, 1959, YOU REQUESTED REVIEW OF OUR ACTION ASSERTING THAT THE CLAIM IS NOT BARRED BY THE 10-YEAR LIMITATION SINCE OUR ACTION OF APRIL 17, 1950, IN DISALLOWING YOUR SUPPLEMENTAL "A" BILL, AUTOMATICALLY EXTENDS THE TIME LIMITATION AS TO ANY ADDITIONAL AMOUNT BELIEVED DUE ON THESE 1942 SHIPMENTS.

THE 10 FULL YEARS PROVIDED BY THE ACT OF OCTOBER 9, 1940, BEGIN TO RUN FROM THE DATE OF DELIVERY OF THE SHIPMENT, AS EVIDENCED BY THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE BILL OF LADING. SEE COURT CASES CITED ABOVE. THE BILLS OF LADING HERE INVOLVED SHOW THAT THE CONSIGNEE RECEIPTED FOR THE DELIVERY OF THE GOODS BETWEEN SEPTEMBER 29 AND OCTOBER 8, 1942. THEREFORE, THE FULL 10 YEARS IN WHICH YOUR CLAIM COULD HAVE BEEN CONSIDERED HAD EXPIRED BY OCTOBER 8, 1952. THE FACT THAT YOUR SUPPLEMENTAL "A" BILL WAS FILED IN 1949 IN NOWISE EXTENDED THE PERIOD DURING WHICH WE, UNDER THE 1940 ACT, COULD CONSIDER CLAIMS IN CONNECTION WITH SUCH SHIPMENTS. SUCH SUPPLEMENTAL "A" CLAIM WAS DISPOSED OF IN 1950 AND AFTER SUCH DATE THERE WAS NO CLAIM BEFORE US UPON WHICH WE COULD ACT. THEREFORE, YOUR SUPPLEMENTAL "B" BILL, RECEIVED IN OUR OFFICE JULY 5, 1957, APPROXIMATELY SEVEN YEARS THEREAFTER AND ON AN ENTIRELY DIFFERENT BASIS, ALTHOUGH INVOLVING THE SAME BILLS OF LADING, CONSTITUTED AN ENTIRELY NEW CLAIM, AND WAS BARRED BY THE STATUTE OF LIMITATIONS, SINCE IT WAS RECEIVED HERE MORE THAN 10 FULL YEARS AFTER THE EXPIRATION OF THE 10- YEAR STATUTORY PERIOD OF OCTOBER 8, 1952.

THE SETTLEMENT ACTION TAKEN BY OUR TRANSPORTATION DIVISION ON YOUR SUPPLEMENTAL BILL NO. N-170814-9-B WAS CONSISTENT WITH THE FOREGOING AND IS SUSTAINED.

2. SUPPLEMENTAL BILL NO. 183017-38-C, TK-219549.

THIS BILL INVOLVES SHIPMENTS MOVING FROM IVORYDALE ( CINCINNATI), OHIO, TO GULFPORT, MISSISSIPPI, IN OCTOBER AND NOVEMBER 1942, UNDER 17 GOVERNMENT BILLS OF LADING. THE BILLS OF LADING INDICATED THAT THE SHIPMENTS WERE FOR EXPORT AND THE CHARGES ON THESE SHIPMENTS WERE ORIGINALLY CLAIMED AND PAID ON THE BASIS OF THE EXPORT RATE. SUBSEQUENTLY, ON MARCH 7, 1949, YOU SUBMITTED SUPPLEMENTAL BILL NO. N 183017-38-B FOR $6,133.69 ADDITIONAL CHARGES COMPUTED ON THE BASIS THAT THE CONSIST OF THE SHIPMENT WAS OTHER THAN THAT SET OUT ON THE BILLS OF LADING. THAT CLAIM WAS DISALLOWED BY SETTLEMENT DATED AUGUST 17, 1950. IN OUR AUDIT OF YOUR ORIGINAL BILL PURSUANT TO THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, WE FOUND THAT YOU HAD BEEN OVERPAID ON THE BASIS OF THE EXPORT RATE IN THE AMOUNT OF $52.37 AND ON AUGUST 17, 1950, ISSUED A FORM 1003, NOTICE OF OVERPAYMENT, IN SUCH AMOUNT. THE RECORD SHOWS THAT THIS OVERPAYMENT WAS COLLECTED BY DEDUCTION FROM YOUR BILL NO. AFR-21778 ON JUNE 23, 1952. THEREAFTER, THERE WAS RECEIVED HERE ON JULY 5, 1957, YOUR SUPPLEMENTAL "C" BILL FOR $2,518.27 ADDITIONAL CHARGES COMPUTED ON THE BASIS OF DOMESTIC RATES. IN SUPPORT OF THIS CLAIM YOU INCLUDE A COPY OF A LETTER DATED JUNE 5, 1957, FROM THE U.S. NAVY REGIONAL ACCOUNTS OFFICE TO THE EFFECT THAT THE NAVAL RECORDS MANAGEMENT CENTER, CLEAR FIELD, UTAH, HAD ADVISED THAT THE RECORDS THEN AVAILABLE DID NOT CONTAIN INFORMATION CONCERNING THE EXPORTATION OF THE MATERIAL SHIPPED ON ONE (N- 288938) OF THE 17 BILLS OF LADING INVOLVED. ON DECEMBER 10, 1958, YOU WERE ADVISED THAT THIS CLAIM WAS BARRED BY THE ACT OF OCTOBER 9, 1940. LETTER DATED APRIL 8, 1959, YOU REQUEST REVIEW OF OUR ACTION ON THE BASIS MENTIONED ABOVE.

THE BILLS OF LADING HERE INVOLVED SHOW THAT THE CONSIGNEE RECEIPTED FOR THE DELIVERY OF THE GOODS BETWEEN OCTOBER 29 AND NOVEMBER 10, 1942. THEREFORE, THE FULL 10 YEARS IN WHICH A NEW CLAIM COULD HAVE BEEN CONSIDERED ON THESE SHIPMENTS HAD EXPIRED BY NOVEMBER 10, 1952.

YOUR ORIGINAL BILL WAS PAID IN THE FULL AMOUNT CLAIMED AND NO FURTHER AMOUNTS WERE FOUND TO BE DUE YOU WITHIN THE 10-YEAR STATUTORY PERIOD, HOWEVER, ON JUNE 23, 1952, THE GOVERNMENT DEDUCTED THE AMOUNT OF $52.37 FROM AMOUNTS OTHERWISE DUE YOU WHICH WOULD START THE STATUTE OF LIMITATIONS RUNNING AFRESH TO THE EXTENT OF RECOVERING THE AMOUNT CLAIMED WITHIN THE STATUTORY PERIOD BUT SUBSEQUENTLY SET OFF. ACCORDINGLY, FOR THE REASONS STATED HEREINABOVE, THAT PORTION OF YOUR SUPPLEMENTAL BILL NO. N-183017-38-C IN EXCESS OF $52.37 IS BARRED BY THE ACT OF OCTOBER 9, 1940.

WITH RESPECT TO YOUR REFERENCE TO A RULING OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, REPORTED AS CHESAPEAKE AND OHIO RAILWAY CO. V. UNITED STATES, 224 F.2D 433, REGARDING THE QUESTION OF REASONABLENESS OF RATES ON SHIPMENTS FORWARDED TO A PORT FOR EXPORT, WHICH DUE TO WARTIME CONDITIONS WERE NOT EXPORTED, IN WHICH THE COURT RULED IN FAVOR OF THE CARRIER AND HELD THAT DOMESTIC RATES WERE APPLICABLE, YOUR ATTENTION IS INVITED TO DECISION IN UNITED STATES V. CHESAPEAKE AND OHIO RAILWAY CO., 352 U.S. 77, IN WHICH, ON CERTIORARI, THE SUPREME COURT REVERSED THAT JUDGMENT AND REMANDED THE CASE TO THE COURT OF APPEALS FOR THE FOURTH CIRCUIT FOR FURTHER CONSIDERATION, AND A DETERMINATION ON THE FULL RECORD WHETHER THERE SHOULD HAVE BEEN A REFERENCE TO THE INTERSTATE COMMERCE COMMISSION AND NO FINAL DECISION OF SUCH CASE HAS YET BEEN REACHED.

A CARRIER CLAIMING ADDITIONAL FREIGHT CHARGES BASED ON DOMESTIC RATHER THAN EXPORT RATES FOR SHIPMENTS MOVING UNDER GOVERNMENT BILLS OF LADING FOR EXPORT DURING 1942-1945 HAS THE BURDEN OF PROVING ENTITLEMENT TO THE DOMESTIC RATE. 37 COMP. GEN. 560. THE EVIDENCE SUBMITTED WITH YOUR SUPPLEMENTAL "C" BILL IS NOT SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE BILL OF LADING RECORD. SUCH RECORD INDICATES THE SHIPMENTS WERE INTENDED FOR EXPORT. THERE IS NO EVIDENCE HERE THAT SUCH INTENT WAS NOT CARRIED OUT AND PROOF OF EXPORTATION IS OF RECORD AS TO MANY OF SUCH SHIPMENTS. THERE IS NOT SHOWING THAT THE EXPORTATION WAS "FRUSTRATED" AS IN THE CHESAPEAKE AND OHIO CASE AND, ACCORDINGLY, IT IS DOUBTFUL THAT A FINAL DECISION IN THAT CASE WOULD NECESSARILY AFFECT THE AUDIT ACTION TO BE TAKEN AS TO ITEMS WHICH WE COULD, UNDER THE 10-YEAR BAR STATUTE, CONSIDER. ACCORDINGLY, YOUR CLAIM FOR $52.37 ON SUPPLEMENTAL BILL NO. N-183017-38 C IS PROPERLY FOR DISALLOWANCE ON THE PRESENT RECORD. HOWEVER, SHOULD A FINAL JUDICIAL DETERMINATION OF THE ISSUE IN THE ABOVE-MENTIONED CHESAPEAKE AND OHIO CASE BE ADVERSE TO THE GOVERNMENT'S CONCLUSION AND YOU FEEL THAT BASED THEREON ADDITIONAL AMOUNTS ARE DUE YOU, CONSIDERATION WILL BE GIVEN THERETO AT YOUR REQUEST AT THAT TIME TO THE EXTENT OF THE AMOUN ..END :